Reforming the European Court of Human Rights: The Draft Brighton Declaration

By NOREEN O’MEARA

Efforts to reform of the European Court of Human Rights are defining the UK’s chairmanship of the Council of Europe, a six-month term which comes “once in a generation”. With the docket and adjudicatory problems affecting the Strasbourg court well-known, the UK is seeking to build on previous recent efforts to streamline practices at the Court, most notably measures agreed at high-level conferences at Interlaken (2010) and Izmir (2011).

In contrast with the public and sound-bite infused speech in which Prime Minister David Cameron outlined the UK’s motivations for using its chairmanship to advance reform of the European Court of Human Rights last month, the Draft Brighton Declaration was finally leaked yesterday (first in French, later in English), following its transmission to High Contracting Parties last week. The Draft Declaration will be subject to intense negotiations in the lead-up to the Brighton Ministerial Conference on 18-20 April 2012. Indeed, there will be much to discuss: the draft, informed by discussions within the Council of Europe, puts (almost) everything in relation to the Court’s adjudicatory role, and national courts’ relationship with it, on the table. A sign, perhaps, that the government appreciates the limited prospects of securing unanimous agreement on many of the aspects covered by the Draft. Nevertheless, the proposals raised by the Draft Declaration make interesting reading, particularly in light of the ECtHR’s Preliminary Opinion of the European Court of Human Rights adopted on 20 February 2012. This post focuses on a select few.

Proposals on subsidiarity?

The most prominent feature of the Draft Declaration is its emphasis on ‘subsidiarity’. In his recent speech, David Cameron emphasised strengthening subsidiarity, promising proposals “pushing responsibility to the national system” in order to “free up the Court to focus on the worst, most flagrant human rights violations” ...